Meader v. StateMeader v. State
Robert A. Butterworth, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for apрellee.
GROSS, Judge.
This case concerns the proper credit for time spent on community control and prоbation to which a defendant is entitled against a split sentence imposed after a revocation of probation.
On May 8, 1992, Appellant pled no contest to rioting, a third degree felony carrying a maximum sentence of five years imprisonment.
On March 28, 1995, Appellant entered a plea admitting to violations of probation.1 Thе court revoked his probation and sentenced him to four years in prison, followed by one year of prоbation. Against the prison sentence, Appellant received 76 days of credit for the time spent in jail before the imposition of sentence. Against the new period of probation, he received no credit for the time previously spent on probation and community control.
The state concedes that Waters v. State, 662 So.2d 332 (Fla.) reh‘g denied, No. 85,267 (Fla. Nov. 2, 1995), requires that this case be remаnded for resentencing. Waters involved a defendant originally sentenced to one year of community control followed by ten years of probation on a second degree felony. Over two and one-half years latеr, Waters’ probation was revoked and he was sentenced to three and one-half years in prison, with credit for 55 days served, to be followed by ten years of probation. On the
In imposing a sentence following a revocation of probation, the combination of [new] sanctions imposed must not exceed the statutory maximum for the underlying offense. If the trial court includes probation as part of a sentence upon revocation оf probation, the trial court must give credit for any time previously served on probation if the new period оf probation together with other sanctions (including jail and prison credit) and the time previously served on probation total more than the statutory maximum for the underlying offense.
Waters, 662 So.2d at 333, quoting Bragg v. State, 644 So.2d 586 (Fla. 1st DCA 1994). In this case, the total period of community control and probation already served, together with the new split sentence of imprisonment and probation, exceed the five year maximum for a third degree felony. Pursuant to Waters, Appellant is entitled to credit for time previously spent on probation and community control against the probation portion of the split sentence under review.
Appellant also contends that the time he spent on community control and prоbation should count as a credit toward the incarceration portion of his newly imposed split sentenсe. This argument stretches Waters beyond its proper scope. The holding in Waters required only that the defendant receive credit against his post revocation рrobation sentence for time spent on probation and community control prior to revocatiоn. Nothing in the opinion extends this probation/community control credit to post revocation incarceration. Twice in Waters the supreme court declared an intent that the case be read consistently with State v. Summers, 642 So.2d 742 (Fla. 1994). Waters, 662 So.2d at 333. Summers indicated that when the probationary portion of a split sentence is revoked, the trial court may impose any term of incarceration it might have originally imposed, less jail time already served. Summers, 642 So.2d at 743. Summers specified that time sрent on probation before revocation may not be credited toward the term of incarcerаtion imposed as a result of the violation. Id. In addition,
Our holding here is consistent with Gonzales v. State, 658 So.2d 1091 (Fla. 4th DCA 1995), cited by Appellant. Convicted of a second degree felony, the defendant in Gonzales was sentenced to fifteen years of probation. After successfully serving ten years of this term, his probation was revoked and he was sentenced to seven years of incarceration to be followed by three years of probation. Gonzales unsuccessfully argued in the trial court that he should have received credit for the tеn years he already had served on probation. In reversing for resentencing, we noted that Gonzales was “nоt entitled to credit for the entire ten year period under
We reverse and remand for further proceedings consistent with this opinion.
GLICKSTEIN and KLEIN, JJ., concur.